The Executor and Probate of a Will

The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

This topic will discuss the duties of an executor, also called a “personal representative”, named in a Will.

A person does not need to obtain your permission to name you as an executor in their will.  However, when the person dies, someone who is named as an executor in a will can refuse to accept their appointment as an executor if you wish.  Once you accept the appointment as an executor, you will generally be required to seek the court’s permission to stop being the executor.

It is your duty as executor to follow the instructions of the person who wrote the will, called a testator, as the instructions are stated in the Will.  This is what is known as the administration of the estate.  If you are an executor residing outside of Alberta, you may be required to post a bond to the Court as security to ensure that you properly carry out your duties as executor.  Your authority as executor begins on the date of death of the testator.

As executor, your main duties include:

  • to identify the assets and liabilities that the testator had at the time of their death,
  • to administer and manage the estate, including ensuring that any valuable are protected and kept safe,
  • to pay the debts and obligations of the estate, or if the estate does not have enough assets to pay the debts and obligations, to ensure that the debts and obligations are paid off according to law, and
  • to distribute the remaining assets of the testator to the beneficiaries named in the will and to account for the administration of the estate to the beneficiaries.

You may refuse to act as executor even though you are named in the Will.  Before you get involved in the administration of the Will make it known that you refuse the appointment.  Where there is no executor named or the executor refuses to act, an executor can be appointed by the Court.  A beneficiary may also be appointed executor by the Court.  If there is no beneficiary able or willing to apply, the Public Trustee may be appointed.

Before you probate the Will (which means obtaining a court order to allow you to distribute the testator’s assets according to their will), make sure you have the last Will of the deceased.  There is no central wills registry in Alberta, and many lawyers no longer keep original copies of the wills in their offices.  If you do not know where the testator stored their will, you should check where they kept their important papers or other important items.  If the estate is large, you may wish to hire a lawyer to do the probate of the Will.  You do not need to hire the same lawyer who wrote the Will for the testator, although you can if you wish.  If the estate is small and the Will is simple, you may wish to do the work yourself.  The, order (called the “Grant of Probate”) issued by the Court confirms that the Will is valid and that you have the authority to carry out your duties as an executor and to follow the instructions in the Will.

Probate is not always required.  For example, where the estate is small and uncomplicated, or where one spouse dies leaving another spouse living, you may not be required to probate the will.  However, if the estate includes real estate, bank accounts with more than a small amount of money in them, or other registered property, the land title office, financial institutions and other entities will often require that you show them a Grant of Probate before they with allow you to deal with any of the deceased person’s estate assets.  This means that if the estate involves land, bank deposits or investments, it is likely necessary to probate the will.

In order to have a Will probated, you must submit an application for a Grant of Probate to the Court.  The necessary forms for Probate are available from the Queen’s Printer Bookstore or from the Alberta.ca website.  You can call the Queen’s Printer Bookstore at 780-427-4952.

There are many forms that make up the application for a grant of probate package.  Not all forms are needed in all circumstances.  You should complete only the forms and notices required for your particular circumstances.  Once the forms are completed you will need to serve copies of the documents on the beneficiaries, dependents and any other person who needs to be served on the probate application.  Serving the documents simply means delivering copies of the documents to the person in a manner that proves they received them, such as sending them by registered mail or courier.  E-mailing documents is not an acceptable form of service unless you have special permission from the court to do so.

Once the documents are served, you need to file your documents with the Surrogate section of the Court of Queen’s Bench in the judicial centre where the deceased lived prior to their death.  The clerk will advise you of the amount of the Court fees payable to the court based on the net value of the estate.

The testator’s will may also provide some instructions for the funeral service and disposal of the testator’s remains.  There is no legal obligation to follow such funeral instruction’s but most executors will feel a moral obligation to follow the testator’s wishes and will usually do so.

If the funeral services are excessive in cost leaving little or no value in the estate to distribute to the beneficiaries, you could be held personally liable for the excessive funeral costs.

A list should be made of all the assets and debts of the testator.  You should include such things as employment benefits and unpaid wages. After all of the testator’s funeral expenses, taxes, and debts are paid, the property left over is to be distributed according to the instructions in the Will.

Some property may not form part of the estate, as it will pass directly to a named beneficiary without having to go through probate and without any special action by the executor.  For example, property or land that the testator owned with another person in joint tenancy title has a right of survivorship and that property or land will pass directly to the other owner the moment the testator dies.  Life insurance policies or RRSPs that have a named beneficiary will also pass directly to that beneficiary the moment that the testator dies.

If the testator had life insurance, the insurance company holding the policy should be notified.  The insurance company will let you know what documentation it requires before the release the insurance proceeds to the beneficiary named on the policy.

If the testator owed debts to creditors, any creditors must be notified of the estate distribution.  This is usually done by advertising of the intention to distribute the estate in local newpapers.  How many times the advertisement must be placed, and how often, is dependent upon the size of the estate and the size of the debts.  The advertisement can be placed in the local newspaper where the deceased usually lived.  If the deceased did not live in Alberta, then place the advertisement in the place where most of the deceased’s property is located.

A final tax return will also need to be filed with the Canada Revenue Agency for all income earned in the year of death.  Once the tax return is filed and any taxes owing are paid, the Canada Revenue Agency will send the executor a “clearance certificate“.  Having this clearance certificate is the executor’s proof that all taxes owing to the government have been paid.

As an executor, you are entitled to reasonable compensation for the administration of the estate. Keep a record of the time you spend in looking after the estate.  You may wish to speak with the beneficiaries soon after the testator’s death to discuss an appropriate amount of compensation to avoid a dispute with them later. If you and the beneficiaries cannot agree, you may apply to the Court to fix the amount of your compensation.

Once all the outstanding debts and taxes are paid, the remaining assets may be distributed to the beneficiaries according to the will.  Releases from the beneficiaries should also be obtained once you have distributed property to them.  The Releases may be filed for Court records.  If you distribute property to beneficiaries before known creditors and taxes are paid, you could be personally responsible for those debts.  Property is generally distributed to the beneficiaries within one year from the date of the grant of probate, unless the distribution to the beneficiary is to be held in trust for a certain time as set out in the will.

A trust is a complex legal tool.  You should speak to a lawyer if you are a trustee for any beneficiaries.  Your duty as a trustee is to hold and protect the gift for the beneficiary by investing the funds.  Alberta law authorizes only certain types of investments for trustees unless there are clear instructions in the Will allowing for other investments.  Ask your lawyer to ensure that you are acting within your powers and within the law.

A proper record must be kept of all receipts and disbursements for an accounting to the beneficiaries.  The accounts must show the assets and debts of the deceased at the date of death, the compensation you were paid for acting as executor and the amount distributed to beneficiaries.  If the beneficiaries do not consent to your accounting, you may apply to the Court for passing or approval of your accounts.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.